Thomas Potter, III

Thomas Potter, III

Burr & Forman

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SEC Removes Duka ALJ After Refusing No-Bias Affidavit in Timbervest

The SEC’s administrative forum has been under increasing scrutiny over the past year. Now the SEC has removed an ALJ from a high-profile case, after he refused the Commission’s “invitation” to provide a no-bias affidavit in...more

8/3/2015 - ALJ Bebo v SEC Bonds CMBS Dodd-Frank Financial Markets Rating Agencies S&P SEC Stocks Wall Street Journal

DOJ Appeals Newman Insider-Trading Opinion

The Department of Justice appealed the Second Circuit’s Newman decision to the U.S. Supreme Court, after several extensions. United States v. Newman, No. 15-137 (U.S. filed July 30, 2015). Last December’s ruling narrowed the...more

7/31/2015 - DOJ Insider Trading Misappropriation SCOTUS Tippees US v Newman

US Chamber Recommends SEC Enforcement Changes

Last week the US Chamber of Commerce, through its Center for Capital Markets Competitiveness, issued a white paper proposing wide-ranging changes to the SEC’s enforcement process. Most of the 28 recommendations were...more

7/23/2015 - ABA Broken Windows Capital Markets Chamber of Commerce Depositions Discovery Enforcement Actions Forum Rules of Professional Conduct SEC Wells Report

SEC Enforcement Actions Against IA CCO’s: Aguilar & White Respond to Gallagher

In mid-June, SEC Commissioner Gallagher issued a strongly-worded public dissent from two enforcement actions against investment-adviser CCOs, accusing the Commission of “cutting off its nose to spite its face” by punishing...more

7/21/2015 - Chief Compliance Officers Enforcement Actions Financial Markets Investment Adviser SEC

Rare SEC Administrative Loss in Adviser ADV Case

SEC Administrative Law Judge Grimes dismissed administrative charges against an investment adviser and its principals for allegedly failing to disclose material conflicts of interest in its Form ADV and willfully filing false...more

7/9/2015 - ALJ Compliance Enforcement Actions False Reporting Form ADV Investment Adviser Negligence Scienter SEC

Corporate E-Note - June 2015

In this Issue: - IRS Issues Guidance on Portability: The IRS recently issued final regulations that provide guidance on the federal estate and gift tax applicable exclusion amount, in general, as well as the...more

6/30/2015 - Board of Directors Corporate Taxes E-Commerce Employer Liability Issues Estate Tax Final Rules Gift Tax Independent Contractors Induced Infringement IRS Means-Plus-Function Mortgage-Backed Securities Patents Personal Liability Portability Same-Sex Marriage SCOTUS Tax Revenues

US 9th Circuit Holds Google Beyond Question: Map Tack Not Hearsay

A Ninth Circuit Panel held that a GPS location tack generated out of court on a Google-Maps satellite image is not hearsay under the Federal Rules of Evidence. In an immigration prosecution, the location of the arrest...more

6/25/2015 - Appeals Federal Rules of Evidence Google Google Maps GPS Hearsay Exceptions

Gallagher Chides Commission for Sanctioning IA CCO’S

In a strongly-worded public statement last week, SEC Commissioner Gallagher chided the Commission for “cutting off the noses of CCO’s to spite its face.” Explaining his dissent in two recent enforcement actions imposing...more

6/24/2015 - Chief Compliance Officers Conflicts of Interest Enforcement Actions Investment Adviser Sanctions SEC SEC Commissioner

SEC Announces First Wave of MCDC Underwriter Sanctions

The Securities Exchange Commission announced June 18 the first major wave of underwriter sanctions under its Municipalities Continuing Disclosure Cooperation (“MCDC”) Initiative. The SEC sanctioned 36 municipal underwriting...more

6/22/2015 - Check the Box Rules Compliance Disclosure Requirements Dodd-Frank MCDC Municipal Securities Issuers Municipal Securities Market Municipalities Sanctions School Districts SEC Securities Underwriting

NY High Court Boots Mortgage Repurchase Case on Limitations

In a ruling that may signal the end to much of the litigation over mortgage-backed securities, New York’s highest court held limitations for breach of warranty litigation over portfolio loans run from the MLSA closing date...more

6/16/2015 - Breach of Warranty Discovery Rule Financial Institutions Mortgages Real Estate Market RMBS Securities

Tennessee Supremes Reject Per Se Unconscionability of Non-Mutual Arbitration Clauses

On June 5, the Tennessee Supreme Court rejected a per se rule of unconscionability for non-mutual arbitration clauses, holding them enforceable if not too-one-sided and commercially reasonable under the...more

6/10/2015 - Arbitration Foreclosure Mandatory Arbitration Clauses Mortgage Lenders Per Se Rule

Tone-Deaf SEC Asks ALJ in Secret Whether Agency Pressured Him

For over a year, critics have questioned the fundamental fairness of the SEC’s administrative forum, including whether the Agency should act as prosecutor, judge and jury. Even as criticisms mount, the Commission Staff...more

6/9/2015 - Administrative Hearings ALJ SEC Transparency

Sixth Circuit Rejects “Definitively, Specifically” Standard for SarbOx Whistleblower Claims

The Sixth Circuit this week rejected the “definitively and specifically” standard that had required a Sarbanes-Oxley whistleblower’s “reasonable belief” to closely track each element of the legal cause of action for the fraud...more

6/1/2015

SEC Approves Proposed Rules for Executive Compensation

On April 29, 2015, the Securities and Exchange Commission (SEC) narrowly approved proposed rules requiring certain reporting companies to disclose the relationship between pay to named executive officers and performance by...more

5/21/2015 - Disclosure Requirements Executive Compensation Pay-for-Performance Proposed Regulation SEC Total Shareholder Return (TSR)

Delaware Supremes Give Independent Directors a Way Out

In an opinion Thursday, the Delaware Supreme Court held that independent directors should be dismissed from shareholder derivative litigation – even over transactions presumptively subject to “entire fairness” review – unless...more

5/19/2015 - DE Supreme Court Exculpatory Clauses Fairness Standard Independent Boards

FINRA Revises Sanction Guidelines

The Financial Industry Regulatory Authority’s disciplinary appellate body (the National Adjudicatory Council or NAC) has revised the Sanction Guidelines used to determine penalties in enforcement cases. The revisions increase...more

5/15/2015 - Consumer Price Index Enforcement Actions FINRA Sanctions

SEC Confirms “Looking Glass” Fears About Administrative Forum

The SEC confirmed Friday that it may choose to be prosecutor, judge and jury in novel cases where it thinks it knows best and can urge Chevron deference when others seek judicial review....more

5/12/2015 - Administrative Authority Chevron Deference Judicial Review SEC

SEC Awards ~$1.5M to Whistleblowing Compliance Officer

Earlier this week, the SEC approved a whistleblower award of between $1.4-1.6 million to a compliance officer. Ordinarily, the Commission will not consider information to be “derived from [a whistleblower’s] independent...more

4/28/2015 - Chief Compliance Officers SEC Whistleblower Awards Whistleblowers

MSRB Releases Content Outline for Municipal Advisor Exam

The MSRB recently released a content outline for the new Series 50 Municipal Advisor Representative examination, which the SEC approved in principle earlier this year. See MSRB Reg. Notice 2015-06. The MSRB filed the Rule...more

4/27/2015 - Examination Manual MSRB Municipal Advisers

Aging Boomers, Low Yields Lead Regulators to Warn on Complex Products

The “boomer bulge” in the US aging demographic, combined with a persistent low-interest-rate environment, leads regulators to renew their warnings about retail sales of complex investment products to older investors....more

4/23/2015 - Baby Boomers Complex Financial Products Interest Rates SEC

MSRB Files Proposed Municipal-Advisor Conduct Rule with SEC

The MSRB filed its Municipal-Advisor conduct rule proposal with the SEC on April 15. The Rule G-42 proposal has been around the block twice, since the Board first floated it in January last year (Reg. Notice 2014-01). The...more

4/20/2015 - Duty of Care Fiduciary Duty MSRB Municipal Advisers Proposed Regulation

ECF Fail: You Have to Read the Order

We’ve all done it: Read the docket description in the notice of electronic filing (“NEF”) and have your paralegal download the order and add it to the pleadings file. But you have to read the order: The clerk’s...more

4/16/2015 - Confidential Documents Electronic Filing JMOL Patent Litigation Right To Appeal

SEC Files 1st Action Over Anti-Whistleblower Confidentiality Clause

Not April Fool’s for one public-company registrant, as the SEC filed its first settled action today over corporate confidentiality provisions that run afoul of Dodd-Frank whistleblower protections. The clause in question was...more

4/2/2015 - Confidentiality Agreements Corporate Fines Dodd-Frank DOJ Enforcement Actions SEC Whistleblower Protection Policies

White Calls for SEC to Adopt Uniform Fiduciary Standard

SEC Chair Mary Jo White said Tuesday that the SEC needs to move forward on a uniform fiduciary standard for the financial industry, including brokers. Addressing the annual meeting of the Securities Industry and Financial...more

3/19/2015 - Broker-Dealer Brokers Fiduciary Duty Financial Institutions Mary Jo White SEC

SDNY US Attorney Preaches to Choir; Lauds Financial-Industry Gatekeepers

Addressing the annual meeting of the Compliance & Legal Division of the Securities Industry and Financial Markets Association, Manhattan U.S. Attorney Preet Bharara stressed the importance of industry compliance and legal...more

3/17/2015 - Chief Compliance Officers Compliance Corporate Counsel Deferred Prosecution Agreements Dodd-Frank

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